New hope for school employees’ challenge to “anti-racist” training

Brooke Henderson and Jennifer Lumley have faced a series of court losses in their challenge to their school district’s heavy-handed and politically charged “anti-racist” training. A district court and an appeals court panel both dismissed the case for a lack of standing. But late last month, the 8th U.S. Circuit Court of Appeals agreed to rehear their case, throwing out a September ruling by a three-judge panel that sided with the school district.

Henderson, a process coordinator, and Lumley, a secretary, filed their lawsuit in August 2021 with the assistance of the Georgia-based pro bono law firm Southeastern Legal Foundation. While both attended the compulsory training offered by the Springfield Public School District, they objected to much of its content.

According to the panel ruling in September, a training presenter called Henderson “confused” and “wrong” when she expressed her view that Kyle Rittenhouse acted in self-defense during a 2020 Black Lives Matter protest. Henderson said that afterwards she stopped stating some of her opinions out of fear that she would be asked to leave for being unprofessional.

Henderson also said that during another exercise in the training, she agreed with some prompts only because she feared that if she disagreed, she would be asked to leave without receiving credit or pay. She said that, when completing virtual modules, she selected answers with which she did not agree so that she would receive credit for the training.

Lumley had a similar experience. At her training session, she spoke up to disagree with the presenter’s statement that all white people were racist. She stated that she did not believe that all white people were racist, and she added that people of other races could also be racist. She also said she did not believe she was “privileged” as a white person, because she grew up in a low-income household. But the presenter told her she “was born into white privilege.” Like Henderson, after this pushback from the presenter, Lumley chose not to explain her point of view because she was afraid she would be asked to leave and not given credit for training.

The two employees’ complaint details even more problematic aspects of the training that the panel’s opinion did not feature. Henderson contends that a presenter told her that it was her duty to vote for socialists and teach students to do the same. A required video explained that “the United States was a settler colony built on white supremacy and capitalism,” she said.

Kimberly Hermann, executive director of the Southeastern Legal Foundation and the employees’ attorney, said that school officials taught from training materials similar to those found in many school districts.

“Unfortunately, schools across our country have required educators to endure countless hours of similar training that require them to affirm or attest to anti-American ideals such as racism and radical gender ideology,” said Hermann. “In some situations, schools segregate teachers by race in these very trainings. But standing up for our Constitution can be hard and scary.”

A federal judge threw out the employees’ lawsuit in a January 2023 ruling, even sticking them with $312,000 in attorneys’ fees for filing what he called a “frivolous” claim. At least two of the three judges at a February federal appeals court panel hearing seemed sympathetic to the employees, but, while the panel removed the attorneys’ fees requirement, it unanimously upheld the lower court ruling in September.

But Hermann also said that the appeals court’s rare decision to rehear the case—this time by the full court of 11 judges—likely bodes well for her clients.

In the panel’s decision, Circuit Judge Steven Colloton concluded that the employees’ “fear of punishment was too speculative to support a cognizable injury under the First Amendment.”

But in the employees’ petition for rehearing, they point to evidence that, even though what the employees feared did not come to pass, their fears were not “imaginary” or “wholly speculative.”

The district “did punish them when it branded them as somehow complicit in white supremacy for refusing to support anti-racism, and SPS can injure through ‘informal sanctions,’ including ‘coercion, persuasion, and intimidation,’” the petition argues.

Other educators and staff members have faced similar workplace training requirements. Emily Mais, an assistant principal in a Virginia school, complained about “anti-racism” training in a lawsuit filed in 2022. In a February 2023 ruling, a federal court allowed her claim of a hostile workplace to proceed. On Oct. 17, on the eve of trial, the parties reached a settlement favorable to Mais, according to Alliance Defending Freedom spokeswoman Hattie Troutman.

“Americans have realized how threatening this ideology is to foundational American principles,” Southeastern Legal Foundation’s Hermann said. “They realize that for years they were fooled by terminology that may have sounded nice but in reality pits people against each other because of their skin color, which is the complete opposite of what America stands for.”

Circuit judges appear to be fast-tracking the case. Oral argument is set for Jan. 15, and on Monday the court denied the school district’s motion to continue the hearing to a later date.